Before
Sercombe, Presiding Judge, and Tookey, Judge, and DeHoog,
Judge.

Case
Summary: Defendant appeals a judgment of conviction of ORS
814.070 (1) (a), which prohibits a pedestrian from
"improperly proceeding along a highway, " assigning
error to the trial court's denial of his motion for
judgment of acquittal. Defendant argues that the legislature
did not intend for ORS 814.070(1)(a) to apply to pedestrians
who are in the process of crossing the roadway.
Held: ORS 814.070(1)(a) was not intended to apply to
pedestrians who are in the process of crossing the roadway
and there is insufficient evidence in the record for the
court to find that defendant was "improperly proceeding
along" the roadway. On this record, the court could not
have found by a preponderance of the evidence that
defendant's direction of travel was in a line that
generally paralleled the northbound direction of the roadway
and, therefore, the trial court erred when it denied
defendant's motion for judgment of acquittal.

TOOKEY, J.

Defendant
appeals a judgment convicting him of ORS 814.070(1)(a),
[1]
"pedestrian with improper position upon or improperly
proceeding along a highway, " assigning error to the
trial court's denial of his motion for judgment of
acquittal. Defendant argues that the legislature did not
intend for ORS 814.070(1) to apply to pedestrians who are in
the process of crossing the roadway. We agree with defendant;
ORS 814.070(1) was not intended to apply to pedestrians who
are in the process of crossing the roadway, and there is
insufficient evidence in the record for the court to find
that defendant was "improperly proceeding along"
the roadway. ORS 814.070(1). Accordingly, we reverse.

In
reviewing a motion for judgment of acquittal, "we state
the facts in the light most favorable to the state."
State v. Massei.247 Or.App. 30, 32, 268 P.3d 774
(2011). Southeast Division Street in Portland, Oregon, runs
east-west. Southeast 121st Avenue runs north from where it
intersects with Southeast Division Street. Division is a
four-lane road with two lanes of travel in each direction
that are separated by a median lane that can be used by cars
turning left off of Division onto the side streets. In this
case, a car that had been traveling eastbound on Division
pulled into the median lane to turn left onto 121st.
Defendant was walking westbound on Division and he started
crossing 121st. As defendant "was walking diagonally
northbound across" 121st, he was struck by the car
turning left off of Division onto 121st. Defendant was
approximately 20 feet north of where 121st intersects with
Division when he was struck by the car. Officer Schmautz
arrived at the accident scene and issued defendant a citation
for being a pedestrian in an improper position upon, or
improperly proceeding along, a roadway in violation of ORS
814.070(1).

After
the state presented its case, defendant moved for judgment of
acquittal. Defendant, quoting State v. Tyler. 168
Or.App. 600, 607, 7 P.3d 624 (2000), argued that ORS
814.070(1) "describes various prohibited methods of
walking along a highway, " but does not apply to a
pedestrian "crossing a street at a place other than a
crosswalk, other than at right angles." Defendant
continued, asserting that the court could not find him guilty
of violating ORS 814.070(1) because "the only thing that
the state has shown that [defendant] has done, [is] that
he's crossed the street * * * not in the crosswalk, and *
* * not at a right angle." The trial court rejected
defendant's reliance on Tyler and ruled that,

"for purposes of [ORS 814.070(1)], *** [defendant] was
walking diagonally across the street in the lane of traffic,
and not in a position along and upon any shoulder, as far as
practicable away from the traveled roadway, and *** not near
the edge. [Defendant] was not using any available shoulder or
whatever sidewalk was available to him. And he was certainly
not near the side. And that he is in violation of [ORS]
814.070. And by a preponderance of the evidence I find him
guilty."

On
appeal, defendant reprises his argument that "[t]he
[s]tate has failed to show that defendant has violated * * *
ORS 814.070, which prohibit [s] various ways of walking along
or standing on a roadway, but does not apply to the crossing
of a street." The state contends that the trial court
correctly denied defendant's motion for judgment of
acquittal because "[t]he state presented testimony that
defendant was crossing 121st 'diagonally northbound'
*** and that 121st runs north-south." The state asserts
that that evidence "entitled a factfinder to find that
defendant was walking 'along' 121st at the time, in
the sense that he was generally moving in the same direction
that the roadway follows."

In a
case like this one, involving a violation as opposed to a
crime, "[w]hat is required to prove a violation of a
statute enacted by the legislature at trial is a question of
legislative intent subject to the usual rules of statutory
construction." State v. Kins.199 Or.App. 278,
283, 111 P.3d 1146, rev den, 339 Or 544 (2005).
After we settle the legal issue of what is required to prove
a violation of a statute, we view the evidence in the light
most favorable to the state to determine whether the court
could have found that the essential elements of the violation
had been proved by "a preponderance of the
evidence." ORS 153.076(2).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The
issue on appeal centers on what is required to prove that
defendant improperly "proceed[ed] along" 121st. ORS
814.070 (1)(a).[2] As noted, our first task is to ascertain
the legislature&#39;s intentions by applying the "usual
rules of statutory construction." King, 199
Or.App. at 283. "We ascertain the legislature&#39;s
intentions by examining the text of the statute in its
context, along with relevant legislative history, and, if
necessary, canons of construction." State v.
...

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